527 F.

2d 200

PIONEER INTERNATIONAL HOTEL, Plaintiff-Appellant,

v.
FIRST COLONY LIFE INSURANCE CO., DefendantAppellee.
The UNION BANK, Plaintiff-Appellant,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA,
Defendant-Appellee.
Charles H. WHITEHILL, Plaintiff-Appellant,
v.
The NEW YORK LIFE INSURANCE CO., DefendantAppellee.
No. 74--1454.

United States Court of Appeals,

Ninth Circuit.
Dec. 9, 1975.

Paul G. Rees, Jr. (argued), Tucson, Ariz., for plaintiffs-appellants.

Richard M. Bilby (argued), Bilby, Thompson, Shoenhair & Warnock,
Tucson, Ariz., Jerome B. Shultz (argued), Fennemore, Craig, VonAmmon
& Udall, Phoenix, Ariz., A. O. Johnson (argued), Tucson, Ariz., for
defendants-appellees.
OPINION
Before BARNES and ELY, Circuit Judges, and PALMIERI, * District
Judge.
BARNES, Senior Circuit Judge:

Three separate actions were filed in the United States District Court for the
District of Arizona, Tucson Division, seeking to recover death benefits under

three separate policies of life insurance. The insured under each of the policies
was one Newton S. Pfeffer. All three were subsequently consolidated for trial.
2

After the close of the defendants' case, the Court entered a finding that there
was no issue for the jury to determine and that under the law the defendants
were entitled to directed verdicts. Subsequently, judgment was entered in favor
of each of the defendants against the plaintiffs.

Each of the plaintiffs filed a joint motion for a new trial. The motion was
denied in each of the cases. Thereafter Appellants' Notice of Appeal was filed.

We adopt material portions of the Statement of Facts relied on by appellees.1

Two issues are raised:

1. Was the evidence such that any conclusion, other than suicide, could be
reasonably drawn? Our answer is, it was not.

2. Was the denial of plaintiff's motion for new trial proper? Our answer is it
was.

Our answer as to issue 1. is based on the leading cases of Equitable Life

Assurance Co. v. De Johnson, 36 Ariz. 428, 286 P. 817 at 818, 819 (1930);
Pacific Mutual v. Young, 40 Ariz. 1, 9 P.2d 188 (1932); and New York Life
Insurance Co. v. Hunter, 60 Ariz. 416, 138 P.2d 414 at 416 (1943).

In the Equitable Life case, the court said:

'.9 . . where the evidence is of such a nature that a reasonable man could find only one
state of facts to exist, a verdict which necessarily is based on the assumption of an
opposite situation will not be allowed to stand. The law applicable to cases of this
nature may be stated as follows: Where the defense of suicide is set up in an action
by a beneficiary on an insurance policy, the burden of proving that the deceased
committed suicide is upon the defendant. In the absence of proof of the cause of
death, the presumption is against suicide. These principles are supported fully by the
adjudicated cases. In addition thereto, it is almost universally held that when
circumstantial evidence is relied on, the defendant must establish facts which
exclude any reasonable hypothesis of anything except suicide (cases and other
authorities cited), and in cases where either conclusion could be reached, the
question is one for the jury. (cases cited)

'On the other hand, there is a limit beyond which even a jury may not go, and that is
10
the line of reasonable probability. If the evidence be such that there is no reasonable
theory which can be deduced from the evidence--even though there may be a
possible or conjectural one not based on the testimony--on which the jury may find
the death was not the result of suicide, a verdict which negatives suicide cannot be
sustained. (cases cited)
11 determining whether or not a chain of circumstances necessarily as a matter of
'In
law leads to a given conclusion, we think the following to be a reliable test: First, is
the assumed conclusion consistent with all of the known circumstances; and second,
are any of these circumstances inconsistent with any other conclusion? If the answer
to both questions is in the affirmative, then the assumed conclusion is a matter of
law for the court, and a verdict should be instructed in conformity therewith. If on
the other hand, there is more than one conclusion consistent with all of the known
facts, the question is one for the jury, and their decision will not be disturbed by the
appellate court.'
12

On the insufficiency of Mrs. Dunham's evidence to require a new trial we

conclude that she saw 'a body falling.' This was not new evidence. She also saw
a man's hand 'extend from a window' and close the window on one of the upper
floors of the hotel. She did not see Pfeffer or anyone else leave a window. In
denying the plaintiff's motion for a new trial, the district judge remarked to the
effect that even if he accepted all of the alleged new evidence of Mrs. Dunham,
his conclusion on the issue of liability would not be altered. The district judge
obviously deemed the alleged new evidence to be without significant substance,
and with that conclusion, we agree. Ordinarily, the test for determining the
propriety of denying a motion for new trial based upon newly discovered
evidence is whether there has been an abuse of discretion. In this case, there
was clearly no such abuse.

13

We can only conclude that the trial court's conclusion of suicide was consistent
with all of the known circumstances.

14

Affirmed.

The Honorable Edmund L. Palmieri, Senior District Judge, Southern District of

New York, sitting by designation

A. FACTS
The decedent-insured Newton S. Pfeffer died on Saturday, March 29, 1969, as

a result of a fall from the Pioneer International Hotel Building in Tucson,

Arizona. Mr. Pfeffer had been a jeweler in Tucson for many years and in 1966
opened his own store. His business had been progressing and in late 1968 was
in good financial condition.
During this time Mr. Pfeffer was in debt in the amount of $180,000 to Mr.
Whitehill, his attorney (and one of the plaintiffs herein) and other personal
friends, $150,000 to the Southern Arizona Bank, $75--80,000 to The Union
Bank, and had entered into a long term lease with the Pioneer Hotel. As
security for these transactions, the creditors, the plaintiffs-appellants in this
case, procured the following life insurance policies:
1

Pioneer International Hotel was issued a whole life policy on March 18, 1969,
by First Colony Life Insurance Company with a face amount of $150,000

The Union Bank was issued a policy on February 5, 1968, by The Prudential
Insurance Company in the face amount of $25,000 with a decreasing term rider
of an initial amount of $100,000. (As of the date of death, the term insurance
benefits were $92,600.)

Pfeffer was issued a policy on March 6, 1969, by New York Life Insurance
Company in the amount of $125,000, and on March 25, 1969, changed the
beneficiary to Mr. Charles Whitehill
Each of the insurance policies in question had a suicide exclusion clause, the
exact language of which is here immaterial. It was undisputed that Mr. Pfeffer's
death occurred during the contestability period.
During the fall of 1968, Mr. Pfeffer commenced doing business with a man
initially known to him as Mr. Bennett, who later turned out to be one John
Battaglia. These dealings, which commenced on a cash basis, subsequently
turned into credit transactions and despite warnings from his manager and his
employees in late 1968 and early 1969, Mr. Pfeffer continued to do business
with Mr. Battaglia. From February 19, 1969, through March 20, 1969, Mr.
Smith, a Pfeffer employee, took nine trips from Tucson to Los Angeles to
deliver large amounts of valuable jewelry to Mr. Battaglia. (TR 322) As of the
date of Mr. Pfeffer's death, he had delivered to Mr. Battaglia approximately one
and one-half million dollars in jewelry at wholesale value which had not been
paid for or returned.
After Smith's fourth trip on March 3, 1969, Pfeffer, when confronted by his
wife and Mr. Whitehill, promised that he would have no more dealings with
Battaglia. Subsequently, he sent Smith on five more trips from March 12
through March 20 in which large amounts of valuable jewelry were delivered to

Mr. Battaglia. As a result of the delivery of the jewelry, and the refusal of
Battaglia to return or pay for it, Pfeffer was in very deep, serious financial
difficulty. Mr. Whitehill admitted in testimony that unless the jewelry was
returned or paid for, Mr. Pfeffer was definitely insolvent.
The last week of Mr. Pfeffer's life started with a meeting with Charles Whitehill
on Monday morning, March 24. Mr. Pfeffer confessed to Mr. Whitehill that
contrary to his promises of March 3, to Mr. Whitehill and Mrs. Pfeffer, he had
continued delivering jewelry without a receipt to Mr. Battaglia. Mr. Whitehill
and Mr. Pfeffer then met with Mr. Robert Tullar, another attorney in Tucson,
Arizona, to discuss this matter. The next day, March 25, a second meeting was
held with Tullar and he (Tullar) recommended that Pfeffer go to the authorities,
but Pfeffer resisted. (TR 212) The following day, March 26, Mr. Pfeffer went to
Los Angeles to meet with Battaglia in an effort to obtain the return of the
jewelry. The trip was unfruitful.
On Thursday, March 27, Mr. Tullar contacted the FBI and a meeting was held
later that day with various attorneys, Mr. Pfeffer and representatives of the FBI.
It was also on this date that Mr. Whitehill first contacted the jewelry
wholesalers in New York to tell them of Mr. Pfeffer's problems.
Unbeknownst to Mr. Whitehill, Mr. Pfeffer had a meeting on Thursday
morning, March 27, with his barber, Bill Nocei, and informed him that he was
going to commit suicide because of his financial problems arising out of his
dealings with Battaglia.
Significantly, he stated his method of suicide was to be a jump from the Tucson
Federal Savings Building or the Pioneer Hotel. (TR 314)
While Mr. Pfeffer met numerous times with his attorney Mr. Tullar in an effort
allegedly to straighten this matter out, he never told Mr. Tullar about Mr.
Smith's nine trips to Los Angeles with the jewelry. Furthermore, Mr. Tullar was
sure as late as the morning of Pfeffer's death he had not yet received a full and
complete statement from Pfeffer.
March 29, 1969 started with a breakfast meeting attended by Mr. Pfeffer, Mr.
Whitehill and two representatives of the New York wholesale jewelers.
Following that meeting, Mr. David Hyman, a representative of the wholesale
jewelers, returned to New York with a quantity of the jewelry which his firm
had placed in Mr. Pfeffer's store. When Mr. Pfeffer returned to his office that
day he refused the carnation which he traditionally wore in his lapel. At 10:00
a.m. on this day, a meeting was held in Mr. Tullar's office with an insurance
adjuster, Mr. Whitehill, Mr. Pfeffer and Mr. Berger, another attorney in Mr.
Whitehill's office. Both Messrs. Tullar and Whitehill insisted that Mr. Pfeffer

dictate the complete story for the FBI. Subsequent to the meeting, Pfeffer
obtained some dictating equipment and put it in his car.
B. MR. PFEFFER'S DEATH
It was stipulated between the parties that Pfeffer died on March 29, 1969 and
the death resulted from injuries sustained by him following a fall from the
Pioneer Hotel Building to the street below. Pfeffer left the south side of the
building from the stairwell between the tenth and eleventh floors and before
landing on the street, struck a light pole. The local Justice of the Peace, whose
obligation it was to sign death certificates, was seated across from the Pioneer
Hotel in the Walgreen's Drug Store at the time of Mr. Pfeffer's death. Judge
Jacobson saw the body hit the lamppost. (TR 68) Subsequently, he spent two
days checking the police report, the photographs, the investigation reports,
going to the top floor and checking out the area in which it was stipulated Mr.
Pfeffer had exited the building, and reviewing the death certificate. Based on
this investigation, he signed the death certificate showing the cause of death as
being suicide.
At the time Judge Jacobson signed the death certificate, he was not aware that
Mr. Pfeffer had written in longhand a pathetic suicide note to his wife, which
read as follows:
'Dear Shirlee. 1. Please use Bring's Funeral Home.
2

Suggest you cremate

Make donations to U of A

I have let all my friends down. I did a stupid, foolish act by trying to deal with a
bad character. He had nothing on me. I was going for a big sale to get everyone
paid

Make John Battaglia pay all his life for the way this mad dog created a situation
for me from which I couldn't extricate myself

No man ever had a more worthy son or better wife or could ever find one

I can't stand the pressures of letting every one down so I must go this way

What I have done will make headlines anywhere, but I don't even have enough
imagination to do an unmessy job

Shirlee and Jeff, I just don't know another way to salvage something for my

friends so I am going this way

10

May God in his infinite wisdom protect you in the days ahead

11

I realize what I have done to you but I have involved too many of my friends
with my foolhardy sales to John Battaglia
Love, Newt.'
The note was discovered after Pfeffer's death in the rear of Mr. Pfeffer's desk.
The handwriting was identified by Mr. Whitehill and Mrs. Pfeffer as being that
of Mr. Pfeffer.
C. STATE OF DECEDENT'S MIND
A great deal of the testimony in this case surrounded the alleged state of mind
of the decedent during the week prior to his death. The plaintiffs attempted to
show that while Mr. Pfeffer was quite despondent at the first of the week, by
Thursday and Friday he was becoming more encouraged that he could solve his
financial problems. However, on Saturday, the day of his death, the creditors
informed Mr. Whitehill that the loss of jewelry was one and one-half million
dollars at wholesale price and Mr. Pfeffer's last minute attempt to borrow or
somehow ransom the jewelry back through a mysterious Mr. Kalif failed. Also,
on Saturday morning the insurance adjuster stated his opinion to Mr. Pfeffer
that there was no coverage with respect to the losses sustained in the Battaglia
transactions. The adjuster also stated that Mr. Pfeffer's spirits its were low.
When he (the adjuster) heard of the death he assumed it was suicide. Mr.
Pfeffer who was an egotistical and very proud man, knew that after he dictated
his complete statement and it became public knowledge he would be held in
complete and utter ridicule in the community.
Subsequent to lunch and immediately prior to his death, Mr. Pfeffer had a
conversation with Mr. Sid Morris, one of his employees, in which he said: 'Sid,
you're terrific. Just keep working and do a good job.' He then shook hands
limply and stated: 'I am going upstairs, I will be down in one minute.'
Mrs. Pfeffer believed him to be desperate, particularly during the last week of
his life. She also stated that at the luncheon several hours before Mr. Pfeffer's
death, nothing was said that would indicate any hope of alleviating Mr.
Pfeffer's financial problems.
D. MOTION FOR NEW TRIAL
After judgments were entered in favor of defendants, plaintiffs filed a motion

for a new trial to which was attached a statement by newly discovered witness
Nellie Dunham, who witnessed Pfeffer's fall. By virtue of the statement it was
claimed that this constituted newly discovered evidence that was not available
to Plaintiffs' attorney at the time of trial.
Mrs. Dunham, who was located across the street and down the block, to the
east of the hotel did not see Mr. Pfeffer exit the building, but only saw him
falling. Subsequently, she saw a hand come out and close a window on the
south side of the Pioneer Hotel. Mrs. Dunham specifically stated in her
deposition: 'Well, I didn't see him come out of the window.'
The trial court denied plaintiffs' motion, holding that nothing had been present
which would justify the granting of a new trial.